CYIL 2011

CZECH COURTS AND INTERNATIONAL LAW conclusions as those of the Municipal Court in Prague even though they had been mentioned obiter dictum . 18 An interesting case was addressed by the Constitutional Court on the date of August 12, 2010 under File No. III. ÚS 123/08. The Constitutional Court had decided in previous cases that members of so called housing co-operatives have a right to transfer ownership title to the flats in which they live, a right guaranteed by Article 1 of the Additional Protocol to ECHR. In the addressed case, the creditor of members of a housing co-operative asked a court to issue an interim measure preventing the housing co-operative from transfering the flats. The members of this housing co-operative filed an appeal that was dismissed by the court due to the fact that under the Civil Procedure Code they did not have the right to appeal against a decision on an interim measure. The Constitutional Court concluded that if a person has a substantive right guaranteed by the ECHR, such a substantive right has to prevail over domestic procedural rules. This decision is quite controversial because even the doctrine on the self-executing effects of international treaties excludes a self-executing effect in cases where a court does not have jurisdiction to decide the matter. 19 Unfortunately, the Constitutional Court did not explain in the reasoning how it managed to transform a substantive right into a procedural right. Moreover, I believe that the Constitutional Court would have been able to resolve the issue at stake through a consistent interpretation of the Civil Procedure Code, instead of trying to apply directly the Additional Protocol to ECHR.

18 It was a Decision of the Constitutional Court from the date of Setember 27, 2007, File No. III. ÚS 712/06, published in the Soudní judikatura, 2008, No. 7, p. 496, under publication No. 87/2008. 19 See e.g. Frolova v U.S.S.R. 761 F.2d 370 (7th Cir. 1985).

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